Baltimore & Ohio Southwestern Railroad v. Carroll

171 N.E. 923, 202 Ind. 37, 1930 Ind. LEXIS 13

• Court: Indiana Supreme Court
• Decided: May 23, 1930
• Docket: No. 25,346.
• Status: Published

Opinion

Martin, J.

This court, on October 2, 1928, by its decision in the above-entitled appeal, affirmed the judgment of the Jennings Circuit Court, and, on March 15, 1929, denied the appellant’s petition for a rehearing thereof. Baltimore, etc., R. Co. v. Carroll, Admx. (1928), 200 Ind. 589, 163 N. E. 99. 1

Thereafter, upon petition of the appellant, a writ of certiorari from the Supreme Court of the United States to this court was granted “with the limitation, however, that counsel shall confine themselves, in the briefs and in oral argument to the question whether this suit is barred by the statute of limitations.” Baltimore, etc., R. Co. v. Carroll, Admx. (1929), 280 U. S. 537, 50 Sup. Ct. 16, 74 L. Ed. 23.

By virtue of such writ, the transcript of the record in the above-entitled cause was filed in the Supreme Court of the United States, wherein the decision and judgment of this court was reviewed, with the result that on February 24, 1930, such decision and judgment was reversed, in an opinion delivered by Mr. Justice Sutherland, Baltimore, etc., R. Co. v. Carroll, Admx. (1930), 280 U. S. 491, 50 Sup. Ct. 182, 74 L. Ed. 279, and an order, which has been duly certified to and received by this court, was entered, as follows:

“It is now here ordered and adjudged by this court that the judgment of the said Supreme Court in this cause be and the same is hereby reversed with costs,* that the said appellant, The Baltimore and Ohio Southwestern Railroad Company recover against said appellee Six hundred and thirty-eight Dollars and Seventy-five Cents for its costs herein expended and have execution therefor. And it.is further ordered that this cause be, and the same is hereby remanded to the Supreme Court of the State of Indiana for further proceedings not inconsistent with the opinion of this court.”

In obedience to the foregoing mandate of the Supreme Court of the United States, the order and judgment of this court affirming the judgment of the Jennings Circuit Court is hereby set aside and annulled, and the judgment of the Jennings Circuit Court rendered in said cause is hereby reversed, and the cause is remanded to that court with directions to sustain appellant’s motion for a new trial, to sustain appellant’s motion to separate causes of action, and for further proceedings not inconsistent with the opinion of the Supreme Court of the United States pronounced February 24, 1930, arid not inconsistent with those portions of the opinion of this court pronounced October 2, 1928 which are not in conflict with said decision of the Supreme Court of the United States.

1 On a former appeal of this case from the Jackson Circuit Court, the judgment was affirmed by this court March 14,1922. Baltimore, etc., R. Co. v. Burtch (1922), 192 Ind. 199, 134 N. E. 858. On application of the appellant, the Supreme Court of the United States, by certiorari to this court, reversed the judgment January 6, 1924, Baltimore, etc., R. Co. v. Burtch (1924), 263 U. S. 540, 44 Sup. Ct. 165, 68 L. Ed. 433, pursuant to which mandate, this court reversed the judgment of the Jackson Circuit Court and directed that a new trial be granted. Baltimore, etc., R. Co. v. Burtch (1924), 194 Ind. 701, 142 N. E. 865.